September 24, 2020
LANSING – Michigan Attorney General Dana Nessel today joined 18 states, territories and counties in urging the U.S. Court of Appeals for the District of Columbia to affirm a lower court’s ruling that the U.S. Army Corps of Engineers (Corps) failed to fully assess the potential impact of an oil spill from the Dakota Access Pipeline on the environment and the natural resources that Native American tribes depend on, and ordering the shutdown of the pipeline in the absence of a lawful environmental assessment.
In addition to protecting the interests of the tribes, supporting environmental justice and implicating issues around the country’s continued reliance on harmful climate-changing fossil fuels, the case could reaffirm longstanding legal principles that benefit Michigan, other states and their residents in their own challenges to environmentally harmful projects within their communities and beyond.
“The U.S. Army Corps of Engineers failed to comply with legal requirements by neglecting to fully consider the consequences of a breach of the Dakota Access Pipeline, and my colleagues and I urge the Court of Appeals to affirm the lower court’s ruling,” Nessel said. “This oil and gas pipeline could potentially impact the environment and has climate change implications we cannot overlook. Moreover, we must join our Indigenous partners who have led the way in raising the alarm about the environmental threat this project poses. As they have advocated from the beginning, shutting down this project is essential to protecting the environment.”
The brief supports the Standing Rock Sioux, Cheyenne River Sioux, Oglala Sioux, and Yankton Sioux tribes in their challenge to the Corps’ decision to grant an easement to Dakota Access LLC to authorize the construction of a portion of a 1,200-mile pipeline to transport more than a half-million gallons of oil a day under Lake Oahe. The tribes rely on Lake Oahe for drinking water, religious ceremonies and other important Indigenous uses. The U.S. District Court for the District of Columbia found the Corps violated the National Environmental Policy Act (NEPA) by failing to complete an environmental impact statement before the agency granted the easement authorizing the pipeline. It marked the second time the district court had faulted the agency for violating NEPA regarding the project. The district court vacated the easement, requiring the pipeline to be shut down while the agency attempts a second time to comply with NEPA. Last month, the appeals court issued an interim order allowing the pipeline to continue to operate pending the resolution of further legal proceedings.
According to today’s brief, courts should, except in rare cases, vacate a federal agency’s action if it violates NEPA. NEPA, one of the nation’s most important environmental laws, is built on the commonsense principle that the federal government must first fully analyze the potential environmental consequences of its proposed actions, disclose those impacts for public dialogue, and seek to use that knowledge to avoid or mitigate potential environmental harm. Judicial decisions that leave in place an agency action that violates NEPA “incentivize federal agency decisionmakers to do the bare minimum and encourage project proponents to advance their projects as quickly as possible so that they may later claim” during potential litigation that there are severe economic consequences of vacating the agency action and stopping the authorized project,” the brief states.
In this case, the coalition argues that both the Corps and Dakota Access are seeking to subvert NEPA’s mandate requiring a full and comprehensive environmental review by claiming that shutting down the pipeline would cause widespread economic harm. Any potential economic harm was self-inflicted by Dakota Access, as it chose to proceed despite the tribes’ challenge to the easement. Nullifying the easement and shutting down the pipeline as a result, the brief argues, is “particularly appropriate in this case where the Corps’ violation was serious and so much is at stake for the tribes – sovereign entities in our federal system that have far too often been marginalized.”
The brief argues that federal court enforcement of compliance with NEPA is more important now than ever.
“Today – in the midst of the devastating effects of a changing climate and increasing awareness that environmental harms are disproportionately borne by our most vulnerable and historically disenfranchised communities – it is more important than ever to fully understand, evaluate, and disclose for public dialogue the environmental effects of such federal actions,” the brief reads.
In filing the brief, Attorney General Nessel is joined by the attorneys general of Massachusetts, California, Connecticut, Delaware, Illinois, Maine, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia, the Territory of Guam, and Harris County, Texas.